Citation NR: 9716137
Decision Date: 05/12/97 Archive Date: 05/22/97
DOCKET NO. 95-04 463 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Manila,
Philippines
THE ISSUE
Entitlement to recognition of the appellant as a veteran for
purposes of Department of Veterans Affairs (VA) nonservice-
connected disability pension benefits.
REPRESENTATION
Appellant represented by: California Department of
Veterans Affairs
ATTORNEY FOR THE BOARD
J. M. Daley
INTRODUCTION
The Department of the Army has certified that any military
service the appellant may have had was as a member of the
Philippine Commonwealth Army.
This matter is before the Board of Veterans’ Appeals (Board)
on appeal of an August 1994 determination from the Manila,
Philippines, VA Regional Office (RO).
REMAND
The appellant asserts that he is entitled to recognition as a
veteran for nonservice-connected disability pension benefits
based on his service in the Army of the United States (AUS)
from July 14, 1942 to March 20, 1947 as certified on WD AGO
Form 53-55, Enlisted Record and Report of Separation
Honorable Discharge and on certifications issued by the
National Personnel Records Center (NPRC) in July 1975,
February 1981, December 1988 and May 1992 certifying AUS
service from September 1, 1941 to December 10, 1945 or from
July 14, 1942 to March 20, 1947.
A letter from the Department of the Army, Office of the
Adjutant General, dated in October 1951, to the San Francisco
RO indicated that no action to revoke the veteran’s AUS
status as a result of service with the 14th Infantry was
contemplated. A redetermination was made November 17, 1953,
at which time the veteran’s AUS status was revoked because he
surrendered on July 15, 1942, without having been formally
inducted into the AUS with his unit. A determination was
made that any military service the veteran had was as a
member of the Philippine Army, inducted in to the service of
the Armed Forces of the United States. That determination
superseded all prior determinations. The corrected copy of
an official roster of individuals determined to have acquired
AUS status through service with the 14th Infantry (Philippine
Army), dated January 14, 1954, does not include the
appellant’s name. This roster indicates that any lists or
rosters in conflict with this roster are rescinded and no
additions or deletions are authorized.
In March 1978, the United States Army Reserve Personnel
Center (ARPERCEN) returned a completed AGUZ Form 632 to the
RO indicating service for the veteran as follows: pre-war
status from September 1, 1941 to December 7, 1941;
beleaguered from December 8, 1941 to December 28, 1941; no
casualty status from December 29, 1941 to February 21, 1942;
beleaguered from February 1942 to May 6, 1942; missing from
May 7, 1942 to July 14, 1942; no casualty status from July
15, 1942 to July 31, 1945; and Regular Philippine Army
service from August 1, 1945 to December 10, 1945. There was
no recognized guerrilla service, although there was
unrecognized guerrilla service from May 7, 1942 to
July 14, 1942. ARPERCEN certified, in essence, that the
appellant’s only recognized service was in the Regular
Philippine Army.
In June 1996, the RO requested the NPRC to identify records
used in those certifications of AUS service subsequent to the
November 1953 revocation and ARPERCEN’s March 1978
certification. NPRC was further requested to identify
whether the subsequent certifications were based upon
reconstructed records due to the 1973 fire at NPRC
facilities. The NPRC response indicated that service
personnel records had been reconstructed from alternate
records sources, but did not indicate that the recent
Certifications of Military Service had been obtained from
alternate record sources. The documents identified as relied
upon in re-certifying the appellant’s AUS service included
the November 1953 redetermination that revoked his AUS
status. In a File Memorandum, it is also noted that in
January 1995, the NPRC acknowledged that their statements of
service in such cases appeared to be erroneous; the NPRC
requested that VA ROs obtain reverification from ARPERCEN.
The Court of Veterans Appeals (Court) has held that a service
department determination as to an individual's service shall
be binding on the VA. Duro v. Derwinski, 2 Vet.App. 530
(1992). Moreover, the pertinent regulations provide that the
period of active service of a Regular Philippine Scout or a
member of the Philippine Commonwealth Army with the Armed
Forces of the United States will be the dates certified by
the Armed Forces. 38 C.F.R. § 3.9 (1996). Although under
the above, only the November 1953 revocation of AUS service
and ARPERCEN’s 1978 certification of service are binding, the
Board recognizes that ARPERCEN has not been consulted
regarding the subsequent NPRC certifications. In Sarmiento
v. Brown, 7 Vet.App. 80 (1994), the Court held that VA was
required by 38 C.F.R. § 3.203(c) (1996) to assist a claimant
in the attempt to verify alleged service. The Court held
that this duty to seek verification is mandatory and stressed
that there is no limit to the number of times the Secretary
shall request service department verifications. Based on the
facts as detailed above and the Court’s decision in
Sarmiento, the Board concludes that the case must be returned
to the RO for reverification of service from the service
department.
Accordingly, the case is REMANDED for the following:
1. The RO should forward to ARPERCEN,
copies of the following documents: a
separate copy of this remand; WD AGO Form
53-55; VA Form 3101 issued in November
1953 pertaining to the revocation of AUS
service; and the July 1975,
February 1981, December 1988 and May 1992
NPRC certifications of AUS service and,
all documents identified by NPRC as the
basis for those certifications.
2. The RO should request verification of
the appellant’s alleged AUS service and
obtain a current, detailed breakdown of
the dates and nature of all service, U.S.
and Philippine, from ARPERCEN.
3. After the development requested above
has been completed to the extent
possible, the RO should again review the
record and re-adjudicate the issue on
appeal. If the benefit sought on appeal
remains denied the appellant and
representative, if any, should be
furnished a supplemental statement of the
case and given the opportunity to respond
thereto.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The appellant need take no action
unless otherwise notified.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1996) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
JANE E. SHARP
Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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